Citation Nr: 0122947
Decision Date: 09/20/01 Archive Date: 09/24/01
DOCKET NO. 97-12 414 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to service connection for melanoma.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran had active service from September 1965 to June
1967.
In 1996, the veteran submitted a claim for service connection
for residuals of agent orange exposure. A September 1996 RO
rating decision denied the claim and notified the veteran of
this determination in the same month. In October 1996, the
veteran specifically requested service connection for
melanoma (claimed as myeloma) based on exposure to agent
orange. A December 1996 RO rating decision denied service
connection for melanoma and the veteran appealed to the Board
of Veterans' Appeals (Board).
In a January 1999 decision, the Board denied the claim for
service connection for melanoma as not well grounded. The
veteran then appealed the January 1999 Board decision to the
United States Court of Appeals for Veterans Claims (known as
the United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter, the Court). In an October 2000
memorandum decision, the Court affirmed the January 1999
Board decision. In a December 2000 order, the Court withdrew
its October 2000 memorandum decision and vacated the January
1999 Board decision because of enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107 (West Supp. 2001); 66 Fed. Reg.
45,620 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The case
was thereafter returned to the Board for compliance with the
VCAA.
In a February 2000 letter, the Board asked the veteran
whether he wanted to submit additional argument and/or
evidence with regard to his claim. A written argument dated
in June 2000 was received from the representative.
REMAND
Copies of the December 2000 Court order and June 2001 written
argument of the representative have been placed in the
veteran's claims folder. After review of the record and
Court instructions, it is the determination of the Board that
additional evidentiary development and adjudication action is
required by the RO, as detailed below.
The VCAA eliminated the concept of a well-grounded claim and
redefined VA's duty to assist a veteran in the development of
a claim. In this case, there is additional VA duty to assist
the veteran in the development of evidence with regard to his
claim for service connection for melanoma.
In view of the above, the case is REMANDED to the RO for the
following actions:
1. The RO should ask the veteran to
prepare a detailed list of all sources
(VA and non-VA) of evaluation or
treatment for melanoma since separation
from service. Names and addresses of the
medical providers, and dates of
evaluations and treatment, should be
listed. After obtaining any needed
release forms from the veteran, the RO
should directly contact the medical
providers and obtain copies of the
records not already in the file.
2. The RO must review the claims file
and ensure that all notification and
development action required by the VCAA
is completed. In particular, the RO
should ensure that the new notification
requirements and development procedures
of the VCAA are fully complied with and
satisfied.
3. The RO should review the claim for
service connection for melanoma. If
action remains adverse to the veteran, an
appropriate supplemental statement of the
case should be sent to him and his
representative. They should be afforded
the opportunity to respond to the
supplemental statement of the case before
the file is returned to the Board.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the regional
office. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
J. E. Day
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).